[1987] KEHC 29 (KLR)
The court found that the plea of guilty was unequivocal as the appellant understood the language and admitted the charges. The absence of a formal conviction entry did not prejudice the appellant since the record showed he was sentenced after admitting the facts. The sentence imposed was excessive for a...
Source-derived case information.
- Citation
- [1987] KEHC 29 (KLR)
- Parties
- Appellant: Paul Albert Zehr; Respondent: Republic; Appellant: Hetz Rohr
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 326 of 1987
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- ENA Torgbor
- Legal Topics
- Plea Taking, Sentencing, Misdemeanours, Uncustomed Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Albert Zehr
Appellant
Republic
Respondent
Hetz Rohr
Appellant
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was unequivocal and properly recorded.
- 2 Whether the absence of a formal conviction entry prejudiced the appellant.
- 3 Whether the sentence imposed was excessive and justified under the circumstances.
Ratio Decidendi
The court found that the plea of guilty was unequivocal as the appellant understood the language and admitted the charges. The absence of a formal conviction entry did not prejudice the appellant since the record showed he was sentenced after admitting the facts. The sentence imposed was excessive for a misdemeanour, and the trial magistrate considered extraneous matters unrelated to the charges. The deportation order was unjustified as there was no evidence of security risk or malicious conduct by the appellant. The custodial sentence was set aside and the appellant was ordered to be released immediately. The same order was extended to the co-accused, Hetz Rohr.
Court Disposition
appeal_allowed
Orders
- The sentences of the trial court are set aside.
- The appellant Paul Albert Zehr is to be released from prison forthwith.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO 326 OF 1987
ZEHR …………………………………………………….PLAINTIFF
VERSUS
REPUBLC…………………………………………………….DEFENDANT
JUDGMENT
November 4, 1987 Torgbor Jdelivered the following Judgment.
This is an appeal against conviction and sentence. The appellant Paul Albert Zehr was charged together with Hetz Rohr on 4 counts involving unlawful possession and use of uncustomed radio equipments, they pleaded guilty and were convicted and sentenced to 3 months imprisonment on counts 1 and 3 and 2 months imprisonment on counts 2 and 4 to run concurrently.
The first and second grounds of appeal are that the plea was not unequivocal in that the language used by the court was unclear, the conviction was not recorded and the appellant had no opportunity to deny or admit the facts read to him.
The record shows that the language of the court was either Kiswahili or English and there is no indication on the record that the appellant did not understand the language actually used. The charge was read and explained and the appellant admitted the offence or charge as read and explained. No prejudice was caused. A conviction was not recorded but this was not a fatal error and the record shows that the appellant was sentenced after the trial indicating that he was convicted. Was the absence of a formal recording of a conviction prejudicial to the appellant? Not so in my view. Again the record shows that the appellant had an opportunity to mitigate after the facts were read during which he could if he wished have committed, denied or clarified the facts. I am satisfied therefore that no prejudice or miscarriage has resulted and that the plea of guilty was unequivocal.
The sentence of the trial court was however excessive as the offences were misdemeanours and the appellant might have been given the opportunity of a fine. Moreover the trial magistrate did take into consideration matters quite extraneous to the charges against the appellant.It was not shown that the appellant was in any way a security risk or that he had indulged in malicious allegations in the western press against this country. In fact the appellant is a retired person and has been resident in this country since 1979. The order for deportation was therefore unfair and unjustified. In the result the sentences of the trial court are set aside.As the appellant has been in prison for two weeks now it could not be appropriate to substitute a fine at this stage. Consequently, as a custodial sentence is unwarranted, the appellant is given such sentence as would secure his immediate release from prison.
Further, and upon the application of Principal State Counsel the order made herein is extended to the accused Hetz Rohr who is also to be released forthwith as the charges against him were similar to those against the appellant Paul Albert Zehr. Order accordingly.
November 4, 1987
TORGBOR
JUDGE